July 2023


Whistle while we work

By Nick Feik
Supporters of lawyer Bernard Collaery and “Witness K” protest outside the Supreme Court in Canberra, with placards including ‘Charge the real criminals’

Supporters of lawyer Bernard Collaery and “Witness K” outside the Supreme Court in Canberra, August 6, 2019. © Lukas Coch / AAP Images

Exposing criminality at work is a moral act, but with whistleblower laws failing to protect those who speak up, lawyers are seeking novel solutions

“You’ll lose your mental health, your physical health, your family and your career by the time it’s over.”

Jeff Morris never returned to full-time employment after blowing the whistle that led to the 2017 royal commission into banking misconduct, but he now spends a lot of time advising – and warning – others who are considering going public with their own evidence of wrongdoing.

So why would anyone blow the whistle, given the costs? As Morris says, “It’s not something where you weigh up the pros and cons. You either do it because it’s the right thing to do, or you’re not made that way. Ninety-nine in 100 people that I talk to don’t go ahead for that reason. And that’s the problem, because it means that the amount of corruption that goes unexposed is enormous. But as long as whistleblowers aren’t protected…”

Whistleblowers are those among us who cannot walk past the wrongs they witness. Such people make the world a better, safer and more just place, to their own personal detriment. In Australia, whistleblowers have done more than all of our regulators combined to address corruption and expose wrongdoing: Richard Boyle is facing prosecution after shining a light on Australian Taxation Office malpractice; David McBride for exposing alleged Australian war crimes in Afghanistan; Bernard Collaery was pursued over revelations of Australian spying in Timor Leste. More recently, Troy Stolz exposed ClubsNSW’s tawdry practices and Sharon Kelsey reported corruption in south-east Queensland’s Logan City Council. The Securency scandal over banknotes, the Australian Wheat Board “oil-for-wheat” kickbacks, and innumerable revelations about asylum-seeker mistreatment, disability services and aged-care conditions, institutional child sexual abuse, healthcare and defence waste, live-export abuse and environmental damage have all been brought to us by whistleblowers. Figures such as Edward Snowden, Julian Assange and Daniel Ellsberg are globally renowned, both for what they exposed and their persecution for exposing it.

“Any of us could be a whistleblower,” says lawyer Kieran Pender. “I could go to work tomorrow and see something wrong, see someone fiddling the books, breaking the law in one way or another. Any of us could be in that position.”

Pender has dealt with upwards of 100 whistleblowers. “Almost every one has said to me, ‘I didn’t set out to become a whistleblower.’ No one self-describes that way. To a person, they think they’re doing their job. Because most people’s jobs aren’t to commit wrongdoing and to cover it up. They think they’re doing the right thing by exposing wrongdoing. It’s only when that is not well received – the wrongdoing is not addressed, issues fester – that they feel the need to agitate internally, blow the whistle to higher-ups, or to external authorities, and in some cases go public, that that label attaches itself to them.”

On the flipside are those who never go public, because the risk is too great. The Whistling While They Work 2 project, led by Griffith University, surveyed more than 17,000 employees from 46 organisations. It found that around 40 per cent of employees, including managers, had observed wrongdoing in their workplace. Just under three quarters of these people had reported it (other studies suggest that figure to be around half of employees). The vast majority of these reports were only ever made internally, with only 1 per cent going directly to a journalist or social media. The numbers are similar across public and private sectors.

Despite the fact that in more than 90 per cent of cases, managers and governance staff assessed the whistleblower to be correct and deserving of the organisation’s support (and it often led to better outcomes in the organisation), around 80 per cent of even lower-profile whistleblowers suffered some form of damage, such as adverse employment actions, harassment or intimidation. Less than half of those who suffered serious direct harm received any remedy, and less than 6 per cent received compensation for the employment, health or personal impacts.

The research also revealed that whistleblowing is the single most important trigger for bringing integrity concerns to light – and often the first.

In 2019, Alysha (full name withheld) landed a job as a clinical practice consultant for child safety at the Ashley Youth Detention Centre, and moved to northern Tasmania with her young family for it.

She was looking forward to embedding therapeutic practices in the centre but soon learnt it was a tokenistic role, and that there was no genuine interest from managers in doing the work that was required. Nevertheless, after spending time with the young people in detention Alysha built trust with them. She was soon inundated with disclosures of serious sexual abuse and violence. First, these disclosures came from the children themselves, and then from other staff. The magnitude of the reports was shocking even to her experienced ears, and involved allegations both against staff and other children (enabled by staff). Making such reports – her legal obligation – became a full-time job.

“These weren’t the kind of boys that would disclose these things lightly – they were petrified, and locked in with these people. And the stories were so consistent. I was getting more and more overwhelmed.”

There were very few other clinical staff at the centre, and there was no support from management. Alysha was harassed and bullied. At one time she was even “chucked into a wall by a colleague”. She ultimately had to go on stress leave as a result of the “totally unsustainable level of pressure”.

Nevertheless she continued to escalate matters through her bosses and her department, to little effect, in the end taking it all the way to the premier.

“It was the typical whistleblower story, I guess – I hate that word. It’s without any intention – you just end up in that position,” she says. “I had promised the kids I’d do all I could.”

In a “typical” story of wrongdoing – if there is one ­­– a whistleblower doesn’t know where to turn. The risks are incalculable, none of the options are good.

There is no discrete body charged with helping whistleblowers in Australia, and little institutional support to guide them through the maze of inconsistent laws, or to help address the power imbalance that a whistleblower faces. This may well change, however, with the Whistleblower Project.

Good ideas around integrity and justice in public life are rare. In recent decades, the growing politicisation of the public service, the government’s overuse of corporate consultants, attempts to muzzle the non-governmental sector, the breaking down of the freedom of information system, raids on the media, draconian new secrecy laws, and defamation laws that prohibit robust public-interest journalism have instead contributed to a country where, as Pender puts it, “secrecy is ascendant and transparency is suffering”.

The Whistleblower Project, an initiative of the Human Rights Law Centre, where Pender is a senior lawyer, will launch soon. It will offer pro bono legal support for whistleblowers, and representation, advice and support in helping them expose wrongdoing safely and lawfully. Pender adds that if a client suffers for speaking out, then the project will provide support in vindicating their rights: “We will go to court for them.”

It is not-for-profit, independent of government, and philanthropically funded, and builds on very successful similar initiatives overseas. Over two and a half years of planning and preparations, the project has also attracted support and advice from some of Australia’s best law firms and barristers; one firm, Johnson Winter Slattery, recently sent two lawyers on secondment to help launch the project.

There is nothing else like it in Australia. Currently there are few lawyers who act for whistleblowers, and those who do are in private practice. Whistleblowers have to be able to afford them or to have already suffered sufficient loss that the case would work on a “no win, no fee” basis, because of the potential of a compensation payment. But this also means it’s too late – something’s already gone wrong.

Pender says the Whistleblower Project will be a “holistic” service, providing not just legal advice but also broader advocacy on whistleblower rights and legal reform, and guidance on communications and information security – through encrypted messaging and email apps such as Signal and Proton mail, for example.

“There’s no point blowing the whistle if the wrongdoing continues. It’s not just our black-letter legal expertise [on offer], it’s our understanding of the wider ecosystem. Our political and media expertise means that we can help whistleblowers address wrongdoing and speak up in a way that is impactful.”

Because it takes a lot more than legal advice for a whistleblower to succeed.

“We’re trying to decrease the cost of courage,” says Pender.

“It got bigger than Ben-Hur,” says Alysha. When other allegations of grave misconduct emerged in Tasmania around the same time – of a serial child-sex offender working for years as a nurse at the Launceston General Hospital – the then Tasmanian premier, Peter Gutwein, called a commission of inquiry. The commission would focus on the Ashley Youth Detention Centre, the Launceston General Hospital and the Tasmanian school system, in which paedophile teachers were kept at work during investigation or moved to other schools.

Alysha became a key witness to the commission, and helped provide 7000 documents, including comprehensive and detailed incident reports. She also spent weeks with investigators, providing evidence that resulted in a 350-page statement. Her whistleblowing became a full-time occupation, and the commission subsequently heard from dozens of witnesses alleging serious abuse and cover-ups.

The reprisals against Alysha have been intense. When Gutwein resigned as premier in April 2022, ministers and department bosses presiding over the whole mess closed ranks. “The state government wanted to destroy me,” she says. Every imaginable legal and intimidatory tactic was waged upon her, including underhanded attempts to attain her evidence, and surveillance both in Tasmania and where she had moved for her own safety. She was also forced to undergo numerous extended psychiatric assessments (up to eight hours at a time; one of which left her catatonically traumatised) to maintain her worker’s compensation payments when she was already deeply traumatised. Independent Tasmanian MP Andrew Wilkie described it as “punishment for her daring to give evidence and name names”.

The stress was so acute that Alysha was referred to hospital – but “they wouldn’t take me because I was too underweight”. She didn’t have an eating disorder; she was so busy defending herself from the government onslaught and helping the commission that she just “forgot to eat” most days.

She also ran up hundreds of thousands of dollars in personal legal fees, which drained her life savings.

“I thought we were going to lose our house.” She and her husband were fighting off debt collectors, all while caring for two kids with special needs.

The trauma and toll on Alysha’s physical health are ongoing. One of her therapists referred to what she’s suffered as a moral injury. As Alysha says, “I’ve lost faith in people and our ability to look after children and the community, for people to be good and ethical. I don’t have that kind of trust anymore.”

Defending herself and assisting the commission has taken up three years of her life. She still isn’t working a paid job, and doesn’t know how long it will be until she’s fit for full-time employment. She worries her career is over, and in the meantime feels guilty about the impact on her own family.

But, following the revelations Alysha made, more than 20 detention centre staff were stood down from their duties, including all of the management team. (The Tasmanian government refuses to confirm numbers.) The commission heard that 55 former detention centre staff were alleged sexual abusers, dating back to the 1970s. A class action against the state involving 150 former detainees of the detention centre is in train. Some former staff are facing criminal charges.

The detention centre is still operating, with children as young as 10 still living in conditions that amount to torture – often locked down for 23 hours a day for weeks at a time, with no counselling or therapy programs, in conditions worse than those of Hobart’s adult Risdon prison.

When the commission hands down its report at the end of August, the full story of the Tasmanian government’s astonishing negligence and complicity in decades of crimes will receive national coverage and, if there is any justice, lead to further resignations, charges and reforms. And yet Alysha, who believes much more must be done to protect Tasmania’s children, fears further reprisals.

Alysha’s case didn’t fall under federal whistleblower protection laws because she was employed by the state government. Tasmania’s equivalent protections are outdated and ineffective, offering Alysha little to no help.

Australia has long recognised, encouraged and sought to protect public officials who speak up about wrongdoing – but only in theory. In 1991, Queensland became the second jurisdiction in the world (after the United States) to introduce whistleblower protection laws. It was followed by all states and territories, and finally the federal government in 2013 (via the Public Interest Disclosure Act). In 2019, the federal government also introduced long overdue reform to protections for private sector whistleblowers under the Corporations Act 2001.

Yet, in practice, the laws are barely functional. They are supposed to provide immunity from criminal, civil and administrative liability for disclosures of wrongdoing. But in the limited cases to date, most notably the prosecution of ATO whistleblower Richard Boyle, legal gaps and uncertainties have dragged cases out for years, increasing costs and defeating the purpose of the protections.

The problems with the laws are manifold: they are unhelpfully complex, and are inconsistent with one another on definitions of wrongdoing or disclosable conduct, proof of unjust detriment, and confidentiality and secrecy requirements. Another reason civil remedies have not flowed is the difficulty in accessing the Federal Court – the primary avenue provided by the Public Interest Disclosure Act, and the only avenue under the Corporations Act. The Federal Court has strict rules of evidence, expensive filing fees and limited scope to help whistleblowers who represent themselves.

Aged-care and NDIS workers, state government employees, taxation whistleblowers, parliamentary staff and all national security employees fall under different laws or none at all. And unlike other areas of workplace law, where the Fair Work Ombudsman and Australian Human Rights Commission oversee and enforce employment and anti-discrimination rights, there is no federal whistleblower agency to protect workers from reprisals.

A recent review of whistleblower cases showed there hasn’t been a single successful case for compensation brought by a whistleblower under either of the two main federal laws that protect public and private sector whistleblowers. In 2019, a Federal Court judge described Australia’s Public Interest Disclosure Act as “technical, obtuse and intractable”.

If the laws are meant to compensate, to reinstate or to make up for the loss that a whistleblower has suffered as a result of unlawful retaliation, they’re not working.

For most people, setting yourself against a government or a multinational corporation is an almost unimaginable step. Jeff Morris wasn’t protected by any whistleblower laws at the time of his revelations about the Commonwealth Bank. He advises people to avoid the court system entirely.

“There’s no law worth a crumpet now,” Morris says. “The current whistleblower protections – and I say this deliberately – are worse than useless. All they do is lure whistleblowers into the valley of death that is our legal system. The legal system hasn’t worked for a very long time for individuals taking on corporates. It is literally a trap and a snare.”

According to Morris, no matter how many millions you have, the corporates always have more. “The banks perfected this – with customers they were in dispute with, they would engage in attritional warfare [using the legal system].”

Troy Stolz’s legal costs in his fight against ClubsNSW, after he exposed a lack of compliance with anti–money laundering laws in the gambling sector, were more than a million dollars, and he was forced to sell his home. He was nowhere near the end of court proceedings when he settled.

Sharon Kelsey also used the legal system in her effort to expose corruption in Logan City Council after being dismissed for making disclosures that she was required to make as chief executive. She is still fighting in court, five years later, and has so far run up $3 million in legal fees.

Morris employed asymmetrical warfare, through the media and using a Senate inquiry. “There was no point taking [Commonwealth Bank] on in a stand-up fight … Taking on Australia’s largest listed company, I would have been pulverised.” Even so, Morris lost his health, his career and, for a time, his family.

He strongly believes in a federal whistleblowing agency, to protect and follow up claims, and to provide compensation for whistleblowers, noting that such an authority was proposed as part of independent MP Helen Haines’ original national anti-corruption commission bill. The proposed authority was dropped by Labor in the legislation that passed late last year, along with the preference for public hearings and a catch-all provision that broadened the definition of corruption. Morris is damning about the Albanese government’s attitude towards exposing corruption, labelling it tokenistic and performative. (“The absurd thing about Boyle and McBride is, Dreyfus is currently presiding over their prosecutions while at the same time, out of the other side of his mouth, waffling on about whistleblower protections. It’s grotesque.”)

Despite his reservations about the legal system, Morris backs the Whistleblower Project for the range of support it will provide.

Pender likens whistleblowers to first responders. “They’re the people who are flagging risk before it crystallises. And if you think of some of the large corporate scandals, many of them could have been nipped in the bud if people had listened to whistleblowers.”

Another case in point: robodebt. “There were people who tried to speak up … Imagine if they’d been listened to. We’d have avoided the mass trauma, the billions wasted, the royal commission.” This is exactly the sort of situation in which the Whistleblower Project would make a difference.

Pender is in regular contact with Alysha, Morris, Collaery, Kelsey, Boyle, McBride and dozens of other whistleblowers. The Whistleblower Project has developed, in part, out of the lessons of these cases, to help people cope.

Just 30 years old, Pender is a serious person, and seriously accomplished. He grew up in Bungendore, a small town outside Canberra, and starting working as a journalist while still in school (mostly in sport, initially), then while studying law at the Australian National University, where he graduated with a University Medal. He briefly worked in employment law, and then went to London where he worked with the International Bar Association on best-practice whistleblower protections, consulting organisations in the United States, Europe and elsewhere. When he returned to Australia and joined the Human Rights Law Centre in 2020, the stars aligned, leading to the Whistleblower Project. All the while, Pender has kept writing freelance (including as an occasional contributor to Schwartz Media publications), about sport, law, human rights and more. He also teaches law at ANU.

In person, Pender has a friendly but careful, reserved manner, and a habit of closing his eyes as he speaks, to ensure he expresses himself precisely and correctly: he emanates trustworthiness. He tells me his father, an economist who helped set up Australian Ethical Investment and the Australasian Centre for Corporate Responsibility, leveraged corporate money to bring social and environmental change. Now Pender would like to use the law, in particular whistleblowing law, to do the same.

As a journalist, he’s likely to be a conduit for some pretty interesting stories. “I hope so,” he says, eyes sparkling. “We see ourselves as an adjunct to press freedom and public-interest journalism. We will make it easier for journalists to do their job, and in a way that is lawful.” Pender notes one exception: national security. “The federal whistleblowing law carves out intelligence whistleblowing. It’s unlawful to disclose that information, and it would even be unlawful for us to receive that information… Right now, if a spy came to me [for whistleblowing advice], I would have to say, ‘Sorry, I can’t help you.’”

The project has taken extensive legal advice from top barristers over the past two years, to ensure compliance and minimise risk. “We would envisage that journalists and NGOs will be referring us clients. And already that’s the case,” Pender says. “What is in the shadows now that we can help expose? It’s exciting.”

As well as taking on cases, the project will push for consistency and harmonisation of the patchwork of laws, and for a whistleblower protection authority. “You can establish the [National Anti-Corruption Commission], but if whistleblowers don’t feel protected and empowered to go to it, and the NACC doesn’t have the institutional support and ability to help whistleblowers going to it, then how will the NACC do its job?”

Alysha has had very few positive experiences in her whistleblower process, but dealing with Pender was one of them. “Kieran was so kind and empathetic,” she says. “I’ve had brilliant lawyers throughout, but prior to Kieran I hadn’t ever spoken to someone who instantly got what I was going through.”

Pender provided guidance, but also advocacy in the form of letters and help with the media. He also introduced Alysha to other people who could help, including MP Andrew Wilkie. “Without me even going into much detail, [Pender] knew what I was being put through, and what was typical in these situations. It made me instantly both sad that this wasn’t an anomaly – that other people had gone through it – and relieved that I didn’t feel so alone and like an alien. I hadn’t been able to relate to anyone because I didn’t know anyone who has lived this experience.”

Another whistleblower describes how Pender helped him map out a strategy when he sought to publicly reveal significant wrongdoing by a major Australian corporation. First he approached the Australian Securities and Investments Commission (to no avail – no surprise there). Next, with Pender’s guidance, the whistleblower approached a sympathetic parliamentarian who used parliamentary privilege to detail the wrongdoing in parliament, which then meant it could be reported publicly.

“It shouldn’t be a crime to expose wrongdoing,” Pender says. “It shouldn’t jeopardise someone’s employment to blow the whistle on misconduct whether in government or in corporations, because that goes to the heart of democracy and protection for human rights.”

He quips that a civil-servant friend calls him a “professional mischief-maker”. Is that how he sees himself?

“Well, I am half Irish.”

Whistleblowers raise fundamental questions of our democracy. They force debate on the influence of corporations, and the balance between free speech and secrecy, and citizen rights and state power. In his bible of American whistleblowing, Crisis of Conscience, Tom Mueller writes:

Whistleblowers prove the remarkable power of one righteous voice, and the possibility of setting aside cynicism and pragmatism to live a life guided by ideals, with all the risks and sacrifices this implies. This affirmation of idealism, and its attendant hope, may be the whistleblower’s most precious gift.

Yet time and again, he writes, in actual instances of wrongdoing, dissenters are rare or absent, because most group members suppress their personal values and participate in the crime more or less willingly. Society accepts, even commends, those who comply – the “good soldiers” who stick with their comrades and make the best of a dirty job – while “condemning as traitors those few who publicly condemn the wrongdoing”. Mueller quotes Edward Snowden in a 2015 interview: “If we as a society are reliant on asking volunteers to stand up and self-immolate to report a wrongdoing, we will very quickly find ourselves out of volunteers.”

“I’ve never met an organizational leader who is against whistleblowing in theory,” observes American lawyer and whistleblowing advocate Tom Devine in Crisis of Conscience, “and in practice, I’ve never met a leader who believed there actually were any whistleblowers in their own organization. They seem to be thinking, ‘Those people (in my organization) aren’t whistleblowers. They’re assholes.’” (Devine has provided guidance on establishing the Whistleblower Project.)

Needless to say, under the status quo it is often a particular kind of person who takes on pure power. Someone with rare bravery and stubborn commitment, and an unflinching sense of what’s right.

Ten years on, Jeff Morris’s perspective has, if anything, sharpened. “Once you’ve seen how ugly things can be, you’ll never look at the world in the same light again. It’s almost a loss of innocence. You can never go back to trusting people or accepting things are okay… It’s part of the PTSD. I don’t think you ever completely recover from it.”

And yet, he supports whistleblowers and what they do. For so many, “it’s not really a choice”. Alysha, Boyle, Collaery, McBride, Kelsey, Stolz and others believed they needed to act; they knew it would be bad for them personally and yet they proceeded. “That is inspirational,” Morris says. If only the price weren’t so high.

Nick Feik

Nick Feik is a former editor of The Monthly.


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